California Court: We Won't Issue A Subpoena To Identify Someone Just To Prove 'Someone Is Wrong On The Internet'

from the anonymous-speech-is-important dept

Two years ago, we wrote about a bizarre legal fight in which Escape Media, the company behind Grooveshark, was trying to force the blog Digital Music News to unveil an anonymous commenter who had commented on Grooveshark's ongoing lawsuit with Universal Music. The comment claimed to be from a Grooveshark employee, though it seemed like the typical unsourced, improbable junk you'll often find in certain anonymous comments -- difficult to take seriously. And yet Escape Media issued a subpoena demanding Digital Music News reveal the commenter's information. While I actually thought that Escape Media had a reasonable legal argument against the labels, we found this particular effort to unveil an anonymous commenter quite troubling. Similarly, while I often disagree with the opinions written on Digital Music News, I respect Paul Resnikoff, who runs the site, and actually helped put him in touch with Paul Levy from Public Citizen to respond to the subpoena.

A year ago, we were disappointed to see a trial court side with Grooveshark and order DMN "preserve" logs that had long ago been deleted in the regular course of DMN running its business. Even worse, the court wanted DMN to hand over its server hard drives for Grooveshark to try to do a forensic analysis of the deleted data to see if it could identify the deleted information about the commenter. DMN appealed the ruling and a California state appeals court has overturned the original ruling -- but did so for reasons other than Levy and DMN had suggested.

Levy and DMN had argued, quite reasonably, that the First Amendment barred revealing the anonymous commenter and also that since the data had already been deleted in the regular course of business, that it cannot be required to preserve servers that might possibly have that data hidden somewhere. Instead, the court ruled in a different manner, saying that the commenter's identity could be protected, but because of California's constitutional privacy protections:

Even if Visitor’s identifying information was reasonably calculated to lead to
admissible evidence, his or her right to privacy under the California Constitution would
outweigh Escape’s need for the information. “The right to speak anonymously draws
its strength from two separate constitutional wellsprings: the First Amendment’s freedom
of speech and the right of privacy in article I, section 1 of the California Constitution.”
.... The
California Constitution provides that all people have a right of privacy.... This express right is broader than the implied federal right to privacy.... The California privacy
right “protects the speech and privacy rights of individuals who wish to promulgate their
information and ideas in a public forum while keeping their identities secret,” and “limits
what courts can compel through civil discovery.”

Perhaps even more interesting is that Justice Victoria Chaney appears to channel XKCD in pointing out that we can't just go around willy-nilly identifying people online just because you don't like what they say:

Visitor has done nothing
more than provide commentary about an ongoing public dispute in a forum that could
hardly be more obscure—the busy online comments section of a digital trade newspaper.
Such commentary has become ubiquitous on the Internet and is widely perceived to carry
no indicium of reliability and little weight. We will not lightly lend the subpoena power
of the courts to prove, in essence, that Someone Is Wrong On The Internet.

Reader Comments

This is why I use Tor. I can't afford to fight multiple lawsuits filled against me, simply because I want to exercise my 1st Amendment right of free speech on the internet.

I also can't afford my employment background check information to be blacklisted, due to criticisms I may speak about a government.

Plus, I cannot afford having my computer being targeted by the FBI, NSA, or local law enforcement authorities. Resulting in all kinds of malware and spyware being quantum inserted onto my PC via Foxacid servers.

Without anonymity, the only choice I would be left with is to simply shut-up and keep my opinions to myself, and I'm sure quite a few countries are working towards that goal. Russia forcing bloggers to register their real names is one example. The US's 'internet drivers license' would seem to be another.

I'll keep speaking my thoughts freely online for as long as it remains possible. The way things are going, I better enjoy that freedom while it lasts.

Re: Re: Tor

1) The NSA leveraged their massive surveillance to perform traffic analysis on the various Tor datastreams. This allowed them to be able to identify the streams that belonged to specific individuals.

2) They redirected those streams to their own servers to enable a MITM attack.

3) They performed the MITM attack in a number of different ways. In some cases, they used forged certs. In other cases, they spearfished to compromise the machines being used.

While it is true that Tor has not been compromised as a whole, it is also true that if you are both of special interest to them and not extremely cautious, your Tor use can be subverted.

For most people, Tor is still sound and provides a high degree of security, though. The amount of effort (and lack of guaranteed results) the NSA needs to put into subverting it ensures that they cannot do this on a widespread basis. However, it can be done.